The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1887-10-01

LY MEL Iii GENCET;
In Confederate money and invested It In
Confederate bonds and settled his accounte
before the Probate Court, not only was
the action Of tho executor invalid, but tho
action oil the Probate Court was . nullity
and afforded him no protection. n,
NJ It lie true that this ruling was based
upon the ground that tho action Of the
executor In making Investments Il, con.
federate bonds was In aid OF the rebellion.
And 80 1t was In this case. The debt wRB
collected In Confederate money and Ia.
vested In, Confederate bonds, and ID falls
within the rule Of law as laid down In the
Gaze cited. There !wp, however, more
excuse for tho action OF tho executor In
the case cited than for the tiduclary, in the
ono under consideration. The executor
IN tho case cited wsa In the heart Of tho
Contederscy and tho country was entirely
under the control Of the Confederate au.
thoritieB' and II 10 but fair 10 presume sha.
there was but littlo or no choice left him
as to his course Of action. Not so In this
Gaze. The military llnea oiton shifted,
and the military authorities OF tho United
States were not unirequsntly In possees.
ion Of Augusta county, ths PLACE OF resi-.
dence 81 the administrative Of the estate.
Under such circumstance ample oppor.
tunity offered 10 enablp both parties 10
settle tho debts due the estate In money
called for by tho contract. 5.E5 h'.
I.is further insisted that Cas!lems IN 9
effort to pay or and discharge q debt
under the circumstances was an illegal
act upon his part, and consequently void.
II will be observed tina. CastlGman' action
for the most part waa voluntary. There
ID io evidence In tho record which die.
closes the fact TINT he wss required 10 pay
the notes past aud falling due. But the
evidence tends 10 shov q ieveriah desire
on his part to get rid OF thia indebtness
with little expenne, as speedily as possible
and with the leas. Inconvenience to him.
self. It ic quite apparent that no wanted
to pay the debt which was contracted Of
the timo with reieronce to the standard
value OF money in the United States In q
currency far below that value, and in fact
possessing only purchasing power Of
one.third OF lis apparent value.
This attempt thus to satisfy O debt 60
well secured and when there exis.ed no
necessity for its collection, and when he
was not required to pay with any other
money thpn TINT called for in tho contract,
savorS not only OF q fraud, but 10 IN in.
Justice TO tho heirs Of this estate and
should be disregarded. II tho personal
Representatives. wero not justified in &C.
cepting in payment any other money than
that called for by tho contract, then clear
ly Cas!!emnn had no right to pay them in
tho money he did. .}ss2l' 5S3iif''fjj
s In tho language Of Judge Davis, speak-
ing for the Court in. tho CASE OF Fsez We,
Slower, 22d Wallace: SIT Was q void act
on his part to attempt to discharge his
debt in this way 60 well as a fraud in the
personal representative to saGer him to do
SOL In the further support Of thia posi-.
ton wo roly upon tho Low aa stated In the
case Of McBurnia va. Carson, OH Otto.
There are other publications. to this effect
in the State tribunals, but we content our.
self with thoas tSe have cited to sustain
this view Of the cash. ~ .,., '2l55eef n
1t Is icsieted, however, that the Supreme
Court in the case Of Glasgow VS.. Lipse, In
ll7th United states, has changed Its POSI-
ton, snd that under the laH So statRd In
tina. case the payment by 0aotlenan to
the personal representatives was legal, and
that SO q consequence the plaintiff is not
entitled to recover. 4 We do not concur
with this visw. The CASES ore very differ.
ent, and necessarily the rule Of law sppli-
cable to this case cannot be the eams. In
that case the executors we're authoIizei
by tho will to sell tina land and convey it
10 the purchaser. There the contract was
with the exscutor and not as In the case
under confederation with the decsden.,
who, if living, could accept payment in
my euthoriz.d money without regard
to its value. As wa have before
said the case is far different
nth en- executor or an administrator. In
Glasgow vs. Lipse, tho executor, setting
under the power conferred by tho teststor,
sold the land aud conyeyedit by deed to
one spsers. After the purchase Spesrs
died and Glasgow beca;ne under his will
tho executor. In thaG ease q demand wss
made by the executor Of Llp5s upon Glaa-
gov for the money due tbs eetetc and
glasgow was informed that the heifs
wanted their money and tina. they wers
willing TO accept it in Confederate notes.
which, ha9 thea become the psinoipsi cur
rency Of the country. In the case under
consideration there was 10 demand made
on the debtor for money for distribution
amongst the heirs, nor does it appear that
It Yss needed for any Of the uses Of tho
eatsto wnipn would require the personal
representative to csll for tho payment.
We must, therefore, conclude that no legal
e1euss existed for the action Ct the fidu-
ciarien in accepting 40 thoy did the pay
ment OF the debt due fcora Gestlemcn in
Confederate money. Certainly the debtor
had taken no steps to coeyce to receive
the money offered in discharge OF his
debts, but they determined 10 accept 1t
and roinvert 1t. Under the circumstances
tho acceptance Of the money in deprecia-
tod currency and Its seinvestment was not
only Illegal, bpt as We psia directly in aid
OF the rebellion and in consrayeatioa OF
public policy. AVA Fi.9ls' Z,
It is commended that The plaintiff should
not recover on account OF his lachea in
prosecuting this casa. We do mot concur
in thiu aeienss. The record discloses the
faQt that the psfsuNal representatives hcye
never made settlement OF the estate, and
they moved ont Of the State Of Virginia
and carried with. them all papera relating
to their administration; that the plsiniiff
came out Of tho war financially ruined
and wGo urahle to !nHiitute an sutton for
want OF means; thatth deed Of release to
Csct!ewsn vas not placed OF record until
near tho close Of The year 1871. Tho &C.
ton, however, was commenced IN the
spring Of 1881, and II tho notea had boon
sued upon st Law tho ctstyte Ct Limitations
would not have barred 4 recovery upon
them. Courts Of equity usually follow
the rule Of law in the application Of the
atGtIta.5 Put this action is to ENFORCE the
decd Of trust given to rscuse the pay.
menta q the purchase money. The "a
loaSe Was placed on the record only ten
years before tho 1uit Fas commenced. It
In sf,f}icfank IN rinnk thin nosit;or that 4,